og News Yor eral COURT.A KINGS COUNTY.—GENERAL TERM. SECOND JUDICIAL DEPARTMENT, In the Matter of the Probate of the Last Will and Testament of MYRA CLARK GAINES, Deceased. JULIETTA PERKINS and MARIE P. EVANS, Appellants. BELVA A. LOCKWOOD, Of Counsel for Appellants. BRIEF OF JOHN A. GROW, Attorney of Record. BELVA A. LOCKWOOD anp W. W. GOODRICH, Of Counsel for Appellanis. W. T. GILBERT, Attorney for Appellee, Wu. H. WILDER. WM. T. HOUSTON, Counsel for Appellees, Wm. W. Curistmas, Ruopa B. Kennepy, Jas. M. Coristmas, Wm. W. WHITNEY, ann ZuLime WHITNEY SUMMERS. a ~ WasuinaTon, D. C.: i(] i J. S. TOMLINSON, PRINTER, 1893. cw eh DO i 2 SUPREME COURT, KINGS COUNTY.—GENERAL TERM. Second Judicial District. IN THE MATTER OF THE PROBATE OF THE LAST WILL AND TESTAMENT OF MYVRA CLARK GAINES, Deceased. JULIETTA PERKINS AND MARIE P. Evans, Appellants, Vs. Wu. H. WILDER, Wm. W. CHRISTMAS, Ruopa B. Krennepy, Jas. M. CuHrRist- mAs, Wm. W. WHITNEY AND ZULIME WHITNEY SUMMERS, Appellees. e-@-e-. id The Grounds for Appeal are Newly Discovered and Important Evidence, and Exceptions Taken at the Trial. STATEMENT OF CASE. This appeal is made from the Surrogate’s Court of the Second Judicial District, to reverse a decree to probate a pretended nuncupative will of date January 5, 1885, and for the probate of the olographic will of the decedent, of date January 8, 1885, by Julietta Perkins, legatee under — said will, and by Marie P. Evans, executrix under said will. This will of the 8th of January, 1885, is a will written wholly by the testatrix, and signed by her, after counsel and mature deliberation, as we are able to show. The appellants are represented by John A. Grow, Attor- ney of Record, and by Belva A. Lockwood and W. W. Goodrich, of Counsel. | The probate of the will of January 8, 1885, is contested by Win. H. Wilder, who claims as surviving executor of a pretended nuncupative will of January 5, 1885, which © was neither written, read or signed by the testatrix ; 2. dictated by, or read to her; but which was written by one John F. Butts, as he states, at the dictation of said Wilder, as he, Wilder, states, and signed by one Dr. Wm. H. Holcomb, per his statement. (See Record, pp. 56 and 57.) | In this pretended will, one Jas. Y. Christmas, now deceased, was joined as executor. (See pp. 82 and 83 of Record.) This will of January 5, 1885, was thrown out of the Pro- bate Court, Division “B,” of New Orleans, for “informality, and not in accordance with the laws of Louisiana,” Judge Wm. T. Houston presiding, now sole Counsel for the pre- sumptive heirs of the decedent's estate, February 21, 1885. No appeal from this decision has ever been taken. (See p. 46 of Exhibits.) This appellee, Wm. H. Wilder, is rep- resented by W. T. Gilbert, Esq. The probate of both the olographic will and the pre- tended nuncupative will are contested by the surviving children of the daughter of the late Myra Clark Gaines— Rhoda Whitney Christmas, also deceased—viz: Wm. H. Christmas, Rhoda B. Kennedy and Jas. M. Christmas ; and by the illegitimate heirs of the son of the decedent, Wm. W. Whitney, by one Hattie L. Hall, viz: Wm. Wallace Whitney and Zulime Whitney, (one daughter, Myra Clark Whitney, having died since these proceedings began,) who ask for administration as of an intestate estate, and who are represented by W. T. Houston, Kisq., the former Judge who sat upon the two wills in New Orleans. | It is also represented that a previous nuncupative will was executed by the decedent, or attempted to be execu- ted by her, of date January 4, 1885, (see p. 471 of the Record,) in which the said Wm. H. Wilder appears as sole executor, and the so-called Whitney heirs are omitted. Blanks for the amount of legacies were left in this so-called will to be filled in later, and Mrs. Gaines positively opposed at that time the naming of Christmas as one of her exec- utors. When Christmas ascertained this, he insisted on being named as executor, and this resulted in the pre- tended’ nuncupative will of January 5, 1885. It is further represented that one Geo. F. Timms, of Washington, D. C., is the assignee by purchase of such See The Tiss 3 portion of Mrs. Gaines’ estate as legally belongs to the Christmas heirs. It will also be observed that in the petitions filed by the opponents for the probate of the pretended nuncupative will, or for administration, the amount of the estate is not set forth in whole or in part. When Mrs. Gaines died, the judgment of Judge Billings of New Orleans had been rendered in her favor for $1,925,667.83, together with $34,000 costs. This judg- ment was reduced by the United States Supreme Court after Mrs. Gaines’ death, by $1,200,000. The amount final- ly adjudged as subject to administration was $561,313.42, with $34,000 accrued interest, allowed by the United States Supreme Court, April 4, 1891. ARGUMENT versus ADMINISTRATION. 1.- The opponents to the olographic will should be estop- ped from administration, for the reason that this procedure would entirely disinherit Wm. W. Whitney, Zulime Whit- _ ney Summers, and Hattie L. Hall, the mother of these children, who might otherwise inherit as the heir of her deceased daughter, Myra C. Whitney, under the laws of Louisiana, where the real estate lies; and it would seem as though the Whitneys would never have placed them- selves in this position had they been properly advised by counsel. The tendency of the allowance by the Court of administration, would be to throw the whole estate into the hands of the Christmas children, whose claim, it is under- stood, has been assigned to one George F. Timms, of Wash- ington, D. C., for moneys advanced. to them during the years of this litigation; whereas, the Whitney children were equally recognized by Mrs. Gaines, with the Christ- mas children, as her grand-children, and were maintained 3 by her up to the Aster of her death. ‘It was, no doubt, her intention that all of these grand? children should inherit equally; and although it is not even contended that the Christmas heirs are legitimate, our American law has not the barbarity of the English common law, that denies to the bastard any inheritable blood, for under it the child may inherit from its mother, 4 but not from its father. (See testimony of Julietta Per- kins, Rane C. Hutchison, Ella Henderson Whitney, and Record.) 2. Again, the defendants should be estopped from admin- istration because the decedent left behind her a good and valid will, duly and properly executed by herself, in her own handwriting, which she had duly contemplated for at least three years previous to her death, as will be seen by “The Little Blue Paper,’ marked “Exhibit 4,” of Novem- ber 10, 1881, ‘The Confidential Letter,” of August 23, ’84, (see p. 65 of Record,) and by the testimony of eight relia- ble witnesses, namely: Adolf Bouchard, p.419; Mary E. Walker, p. 405; Elanor A. Garnétt, p. 200; Annie Harris Griffin, p. 210; Wm. R. Evans, p. 220; Olive M. Hecht- man, p. 644; Frank L. Arthur, not in type; John H. Russell, p. 643. This will, Mrs. Gaines prepared with her own hand, after due consideration, and after taking legal advice upon it; (see testimony of Nannie H. Griffin and Burche, Hx., p. 43,) and for at least one year she wore it upon her person, that she might use it in case of an emer- gency, (see affidavit of Brown,) and she did use it. It undoubtedly contained her exact wishes, formulated after the intention of many years of intimate acquaintance with Mrs. Evans, during which time they were virtually bus- iness partners, and after much thought, subsequent to the death of her only daughter. | 3. Defendants should not be allowed to administer, be- cause it was not the desire of Myra Clark Gaines that the estate, for which she had so long contested, should be dis- _ posed of in this manner, but in the manner that she had. herself prescribed after due and careful consideration, and, as she believed, in the interest of all those persons for whom she desired to provide. 7 4. The defendants should be estopped from any attempt at administration, for the reason that they have set forth no marriage of parents on either side; no testimony of pedigree from,.or consanguinity with, the testatrix; and have set forth no rights under the laws to entitle them to administer; and notwithstanding the allegations of the pretended will, not one of them was actually born in law- Soe mI Mieco ic) Mii + 2 TO RCT Pit a Si ha nih 5 Jul wedlock. (See Wilder’s testimony, p. 471 of Record.) ARGUMENT versus THE PROBATE OF THE PRETENDED Nunoupative WILL or January 5, 1885. 1. This paper should not be probated because it is not the will of Myra Clark Gaines. | 2. It should not be probated because it is opposed by all of the parties in interest except Wm. H. Wilder, in whose head it was conceived, and by whose machinations it has thus far been carried out. 3. It should not be probated because it was thrown out of the Civil District Court of Louisiana, as a nullity, for being informal, and not in accordance with the laws of Louisiana. : 4. It should not be probated because the separate par- agraphs of said pretended nuncupative will are not intel- ligible, or capable of a valid interpretation; and because it contains legacies to parties not of kin, or having a valid claim on the estate of decedent of nearly $330,000—more than one-half of the whole estate now available—which is contrary to the laws of Louisiana, where it is evident that the lex /oci must prevail instead of the lex fort. (See Lou- isiana Civil Code, p. —, which says that a testator cannot divert from forced heirs more than one-third of his estate.) - 5. It should not be probated because’ the surviving executor named in said paper, who is to act without bonds, is not a person to be entrusted with an estate, having been once indicted, (October 9, ’52, p. 27, Ex.,) and convicted of forgery, served a term, to wit: July 3d, 1856, p. 250 of Record, and who was indicted the second time in 1878, in the Libretto Market case, for fraud and forgery. He escaped indictment the third time early in the winter of 1883, about forged letters purporting to come from Mrs. Gaines, because that lady herself appeared in his behalf and withdrew the prosecution. (He was arrested and © indicted the second time, but the State failed to disburse the money necessary for the prosecution, and the cause re- mained upon the record of said Court until after this suit was begun.) And who has presented a fraudulent claim against the estate of the decedent of over $260,000, when, 6 in point of fact, there appears of record an acquittance from Wilder of all indebtedness to him by Mrs. Gaines a few months before her death, of which we offer an exemplified CUB: | 6. That the paper purporting to be the nuncupative will of January 5th should not be probated because it is not prob- able that Mrs. Gaines ever intended to appoint a convicted criminal, of whom she stood in dread, and who had already despoiled her estate, as her agent, her executor ; and to join him, a pretended son-in-law, whom she hated—who had eloped with her married daughter, had murdered her son, and whom she had saved from the gallows to prevent the entailment of disgrace on her descendants. (See Record of District of Columbia, showing indictment of Christmas, and testimony of Dr. Holcomb and Hutchison, etc.) 7. Thig paper, or so-called will, was never conceived by Mrs. Gaines; was not dictated by her, read to her, or signed by her; but was dictated by Wilder, written out by Butts, and signed by Holcomb, who says he put the peu in her hand, held her wrist, and guided her hand to- make the cross, at which she frowned, and which she seemed very averse to do. Butts says that he corrected Wilder’s dictation, for “if I had written out all that Mrs. Gaines said in her rambling way I would have had a will more than 17 miles long.” (See p. 40 of Record.) Hol- comb says: ‘She did not want to sign it.” (P. 190 of Record.) “She never touched the will! It was laid on a book before her just at the place where she had to sign. The fact was she had a scowl on her face unmistakable, as if she hated everybody in the room; and she told me repeatedly that she hated Mr. Christmas. She was ex- ceedingly reluctant to sign it.” ARGUMENT IN Favor OF THE APPEAL, AND FOR THE PROBATE OF THE WILL OF THE 8TH oF JAN., 1885. 1. We ask for the probate of the will of the 8th of Jan- uary, 1885, because at 2s the will of Myra Clark Gaines, a will conceived by, written out by, signed by, and dated by the testatrix herself, after mature deliberation, and after legal advice as to its effect and legality, and the knowledge A PRP i OAH —s 7 and advice of friends in whom she had confidence. It was the culmination of a long-cherished wish, and a settled conviction that it would be the best thing for her estate, and for the welfare of her grand-children. She knew Mrs. Evans’ interest in them, and her kindness of heart, and her business ability ; for she had been associated with her socially and in business for 14 years; knew her knowledge of the law, and her facilities for raising money should. an exigency occur with reference to the estate. Julietta Perkins had been her intimate friend for 14 years, and her acqnaintance for a much longer time, in the beginning of which Mrs. Perkins was possessed of ample means. Mrs. Evans had been her adviser, her comfort and support in many of her darkest hours, and notably so on the occasion of the shooting of her son by Christmas, in which she telegraphed Mrs. Evans to come to her at once! (See testimony of Hutchison, and affidavit of Brown.) She had been coerced, against her will and against her better judgment, as Dr. Holcomb tells you, into signing — this pretended “will of the fifth,” but with the conscious- ness that she had the will of January 8th on her person, and this fact was not unknown to the wily attendants surrounding her. Mrs. Davis tells us that while she was taking that unfortunate hot bath which led to her untimely taking off, and against which Dr. Holcomb advised, that she, Davis, was searching her bed for twenty-odd minutes for private papers. It was well known by her intimate friends that Mrs. Gaines carried important papers upon her person, and of these Christmas and Wilder desired to pos- sess themselves. (See testimony of Arthur and affidavit of Brown.) Christmas said to Arthur, after he had seen the will on the morning of the 8th: ‘“We knew she had a will but we could not find it.” | Besides this, Mrs. Gaines was interested in both the Cotton and the Bank cases, which were being prosecuted by Mrs. Evans, and in the latter one to the extent of $20,000, and this contract is still extant, and in force. Their interest and tastes were largely identical. They were born in the same region of country, in similar sur- roundings; both were cultured and educated, and both of 8 them spoke the English and the French tongue, (the latter their native language.) Mrs. Gaines had no living daugh- _ ter, and no faith in the friends and members of her own family who surrounded her, and to whom, not even to Christmas and Whitney, (her own son,) did she confide her business affairs. This simple, olographic will, so common in the States of Louisiana and Texas, where the old Roman law prevails, is a type of the woman herself, in its femininity, and in its originality, and the form of will of her own father, Daniel Clark, which she had fought fifty years to maintain, and presumably the only form of will of which she had any knowledge. But it is claimed by opposition that this will is a forgery. If the Court is to believe this, then it must believe the whole body of the will, as well as the signature, is a for- gery; that “The Confidential Letter” of August 23, 1884, is a forgery; that “The Little Blue Paper” is a forgery, and that from 50 to 100 letters by Mrs. Gaines to Mrs. Evans, from 1880 to August 23, 1884, are forgeries; and that the witnesses, Hechtman, Walker, Garnett, Burche, Griffin, Arthur and Bouchard, who all testify to have pre- viously seen the will in Mrs. Gaines’ hands, or “The Little Rlue Paper,” and to have talked to her abont it, are perjurers. Mrs. Gaines was a voluminous writer. Her hand- writing, from 1870 up to the day of her death, is in this Court. : Her pension vouchers, attested by a N otary, witnessed by two friends, and certified by the Secretary of the Treas- ury of the United States, of date, December 4, 1884, are before the Court and cannot be controverted. These sig- natures would show exactly the character of Mrs. Gaines’ writing up to a little more than a month previous to her death. Wm. H. Hagen (expert, pp. 656 and 657) declares the signature to the olographic will, genuine, and so does Expert Kelly, after a very critical cross-examination. (See pp. 674 to 709 of Record.) It is claimed by one of the experts, that in no instance, except where she has written the word Myra alone, does a ee CORRS ENE I ee te re 33 = nt maleate = I &, Y. the loop at the end of the word occur, and yet we have offered an Exhibit, a signature of Mrs. Gaines, under seal of Notary Vinet of New Orleans, where the full name occurs with the loop at the end of the word Myra. Wil- der, who pronounces the signature to the olographic will a forgery, declared also that Mrs. Gaines’ signature to this Notarial Act was a forgery, when he did not know the - nature of the signature to which he was attesting. But Mrs. Elanor A. Garnett saw Mrs. Gaines writing the will, took it from Mrs. Gaines’ hand and read it to Caroline Johnson. She saw also “The Little Blue Paper.” Miss Nannie Griffin, at the request of Mrs. Johnson, handed - the will to Mr. Burche, who read it, (a lawyer called by Mrs. Gaines, who had requested her to ask Burche, “if it was a perfectly good will,”) and he replied that it was, only that it needed a date. Dr. Mary Walker testifies that she saw the will in the latter part of August, 1884, and that at that time it was signed, but not dated. Mrs, Gaines said she would date it when she got to New Or- leans. (See p. 395 of Record.) Mrs. Hechtman saw “The Little Blue Paper.” Adolph Bouchard met Mrs. Gaines at his office in the Custom House in New Orleans, on the morning of the 24th of December, 1884, and asked for Mrs. Evans, and showed him, Bouchard, the will, written and signed, but without date; and she said she would date it as soon as she saw Mrs. Evans, (p. 419 of the Record,) and he states that up to that date there was no ill-feeling between Mrs. Evans and Mrs. Gaines, and Mrs. Gaines at this time calls Mrs. — Evans “Her Little Pilot.” The witnesses of the opposition, who testify so positively that Mrs. Gaines did not sign the olographic will on Jan- uary 8, 1885, are probably correct, for it was not con- tended that she did sign it on that date, for it had been signed long before, and this is what makes the signature so good. The only thing left to complete the will, was the words, “January 8th, 1885.” 3 . Frank L. Arthur, to whom Mrs. Gaines had shown this will in Washington in September, 1884, and who told him why she carried it on her person, swears that he saw her 10 date it at 150 Thalia street on the morning of January 8th, 1885, and that Christmas saw her date it also. When it was offered for probate, witness then said to Christmas, “The old lady has gained her point. She has got her will into Court!” Christmas was watching Mrs. Bradley, when Bissell and Boyd saw her give the will to Mrs. Evans, and he motioned them not to disturb the interview. It is acknowledged by all parties that Mrs. Gaines and Mrs. Evans were friends for many years, but an effort has been made by parties interested in the probate of the pre- tended will of the 5th, to show that a rupture occurred in their friendly relations on or about September, 1881, when Mrs. Gaines left the Vermont avenue house and returned to Mrs. Harrover’s on I street; that this difference never healed, and that it continued up to the date of Mrs. Gaines’ death. Neither this assumption, or assertion are true. On the contrary, you have the testimony of Hutchison, that Mrs. Gaines visited Mrs. Evans every day in the November following, until Mrs. Evans went to New Or- leans, and that this intimacy continued to his knowledge up to Mrs. Gaines’ death. (See testimony of Hutchison, and letters of Gaines to him on file ;) the testimony of Wm, Reed Mills, Esq., who secured the judgment for Mrs. Gaines in Judge Billings’ Court of over $2,000,000; (pp. 287 and 288 of Record ;) the testimony of Bouchard, who saw Mrs. Gaines in his office in New Orleans with the will, December 24, 1884; and the testimony of the eight pre- vious witnesses, alluded to, who all controvert this as- sumption. Mr. Mills states: ‘But there was a quarrel out of the percentage Mrs. Gaines was to receive in the ‘ Bank Case,’ (pages 287 and 288,) but no interruptions in their friendly relations.” “T don’t think this misunderstanding about the percent- age caused any interruption of their friendly relations, be- cause at that time they were frequently together in my office, (see p. 287, Record.) As to social and friendly rela- tions, I always supposed they were quite intimate and friendly. I know that was the expression of those two persons, Mrs. Gaines on one side, and Mrs. Evans on the 11 other, but of course as to the sincerity of the friendship, one must judge for himself; but I never doubted the extreme friendship between Mrs. Gaines, Mrs. Evans and her mother, and I do not to-day; and I had a pretty good opportunity ofjudging. At times I think that Mr. Wilder and Mrs. Gaines were afraid of each other.’ (See testi- mony of John H. Russell, p. 645 of Record, who says Mrs. Gaines told him in August, ’84, that “ Mrs. Hvans was her very dear friend.”) | That there was jealousy created in the minds of Christ- mas, of Wilder and of the so-called Mrs. Whitney as to Mrs. Gaines affection for Mrs. Evans, faith in and reliance upon her, there are too many palpable evidences to doubt. Christmas had already killed Whitney, Mrs. Gaines’ only son, through jealousy of Mrs. Gaines estate; Hutchinson, as he himself states, had warned Christmas that Mrs. Evans would be made her executor; Wilder, her agent, whom she feared, but who was so thoroughly identified with her lony and intricate litigations that she could not get rid of him, and whom she did not dare to fight openly, had been for a long time striving insidiously to poison ~ Mrs. Gaines’ mind against Mrs. Evans for his own pur- poses; and the so-called Mrs. Whitney, who had been only tolerated by Mrs. Gaines during the life-time of her son, because she feared that he might at any time be arrested — for bigamy; and Hutchinson, who had quarreled with Mrs. Evans because she refused to give him a 25 per cent. interest in the ‘‘ Bank Case,” did all he could, as he tells us in his testimony, to turn Mrs. Gaines’ mind against Mrs. Evans, because he was angry with Mrs. Evans and wished to defeat her. It was for this reason, he says, that he selected all of Mrs. Gaines’ letters from 1882 until 1885, whose signatures differed from that in the olographic will presented by Mrs. Evans, and sent them to the Court in New Orleans on purpose to defeat her, but he dared not appear in Court against her; and says, in what should be considered a confession, that he never succeeded in weak- ening Mrs. Gaines’ confidence in Mrs. Evans to the day of her death. This witness, at this late day, volunteers to 12 undo the’wrong he once did to Mrs. Evans, and unlike the witness Bradley, does not attempt to retract it. It is true that the letters of Mrs. Gaines, taken as a whole, show some very peculiar traits of character, amount- ing at times almost to duplicity, and yet they are quite intelligible to those who knew intimately that curious combination of pliability and firmness, who was so easily moved to the right or the left, but who invariably returned to her own well-formed and fixed opinions. Should the olographic will be discredited, which we do not believe, it will be difficult to disprove of the genuineness of “The Little Blue Paper” and ‘The Confidential Letter.” There is still one other point in this remarkable romance in real life stranger than fiction, and that is the method by which Mrs. Evans became possessed of this will, after its execution, despite the persistent and unremitting guard that was kept over Mrs. Gaines to prevent its delivery to her, and to prevent any communication between Mrs. Gaines and Mrs. Evans. The witnesses differ as to the exact date Mrs. Gaines arrived in New Orleans. Wilder says November 14th; Whitney between October 6th and 7th. Mrs. Evans-did not arrive there until December 11, 1884, and December 23d was the last time she ever saw Mrs. Gaines alive. Up to this time they had met every day since their arrival in New Orleans. We will take her own testimony. Mrs. Evans says, (see p. 206 of Record,) “The last time I saw Mrs. Gaines was the 23d of December. I was taken ill that night after Mrs. Gaines called upon me, and did not again leave my room until the morning of the 9th of Jan- uary, when I went to call upon my attorney. There was a motion pending in a case. On that day I called at 150 Thalia street. I did not know that Mrs. Gaines was ill until that day. A little girl bade me come in. I followed her until I came into a room where two men were talking, (Christmas and Wilder.) As I was about to enter Mrs. Gaines’ room Christmas exclaimed, ‘Madam, you cannot go in there!’ (p. 261 of Record.) I answered that ‘I have just heard that Mrs. Gaines is dying.’ Christmas answered 2 Fo AE pean 13 ‘very well, madam, but you don’t go in that room!’”’ and Mrs. Evans, as any other lady would, retired. It is not difficult to understand why, even at that late hour, when Wilder and Christmas supposed they had the will of Mrs. Gaines securely fixed in their favor, that they should have feared Mrs. Evans’ influence over Mrs. Gaines, or Mrs. Gaines’ affection for Mrs. Evans. If this pretended nuncupative will had been a paper that Mrs. Gaines desired really to go into effect, no influence would have made her waver, and no person would have had any right to interfere. It cannot be claimed that Mrs. Evans, an intimate friend, was kept out of Mrs. Gaines’ room on account of the weak physical state of Mrs. Gaines, for if we are to believe the testimony of the opposition, not less than ten or twelve persons were constantly going and coming through that sick room; and many more had been admitted to it, and yet Mrs. Gaines was virtually a pris- oner in the hands of these conspirators, so far as Mrs. Gaines’ personal friends were concerned. Her attorney, Mr. Mills, had also called at the house and had been refused admission. But Mrs. Evans went to her lawyer's and again returned to the house. She summoned courage to go again to the house and room of her friend to which she had been so cruelly refused admittance, and as she turned to enter, saw standing on the block step a woman, who had hurried out of the house, and who, leaning towards her said, “Are you Mrs. Hvans?”’ who answered “ Yes, is Mrs. Gaines dead? A. “No, she is not dead, and neither speechless or unconscious; she is talking about her business now, and she has just talked with me. Mrs. Gaines has told me, ‘Letitia, if I never see Mrs. Evans again, promise me that you will hand her this for me.’ Now Mrs. Evans, I give you this, (handing her the olographic will wrapped up in a small ladies pocket handkerchief,) I have done what I promised, but I want you to make me one promise. I want you to promise me that you will never bring my name into this thing; I want to have nothing to do with those bad men, Christmas and Wilder.” Mrs. Evans, with the will, then returned to her lodgings, and on her way there, stopped at her husband’s ' © 14 place at the Exposition grounds, gave him the will, and he placed it in his armoire where it remained wel it was withdrawn and given to her lawyer, Mr. Mills, who gave it to Hall and Breaux for probate. It does not matter how this will reached Mrs. Hivans, if the will itself is genuine, as we assert, but because sae circumstances have been denied on the stand by the woman Bradley who delivered the will, it seems necessary to give it some attention. Mrs. Bradley (so-called) afterwards refuted this testimony, (see p. 97, Ex.,) and then refuted her refutation. In this paper of restitution she says, ‘“The will was already written and signed, and she (meaning Mrs. Gaines) put in the date only.” This, Arthur’s testi- mony corroborates. (See also testimony of W. R. Evans about paper of restitution.) If the manner in which this will reached Mrs. iia rested upon her uncorroborated statement, or upon the equivocal statement of Bradley, we must then weigh the testimony of the two in the balance against each other; but we have the unpublished testimony of Arthur, who saw Mrs. Gaines write the date, January 8th, in the will, while he and Christmas were looking at her, the words ‘New Orleans” having been already written, and the un- disputed and disinterested testimony of Bissell and Boyd, who both saw the delivery of the paper which Mrs. Evans relates, and the testimony of W. R. Evans as to its receipt by him on the evening of the 9th of January, and the corroboration of the following dates, by her attorneys and the Court records. We present an unbroken chain of evidence, well corroborated, of Mrs. Gaines’ intention to make a will in Mrs. Evans’ favor; the actual making of the will except the date, and the pinning it on her person, (see affidavit of Brown, Bissell, and Evans,) the wearing of it through the year, the dating of it by her, (see testimony of Arthur,) and the delivery to Mrs. Evans, (see testimony of Bissell and Boyd.) The conspirators to the pretended nuncupative will of January 5th had laid their plans well to prevent opposition. Mrs. Gaines had been in the hands of, and under the close supervision of Christmas from the moment that she = ee i i A asi wi be it : . , . Pe : ~ iibing ~ ® 15 had reluctantly consented, under the persuasion of Hutch- ison, as he tells us, to take him with her to New Orleans. She was now ill in Mrs. Virginia H. Davis’ house, and that lady must necessarily know most of the things that transpired there. After Mrs. Davis’ testimony was taken ‘ in New Orleans, she refused to return for cross-examina- tion. Wilder had made her the first legatee under this pretended will by bestowing upon her a plantation of nearly 800 acres of ground situated in the Parish of St. Landry, and worth from $50,000 to $75,000. Naturally it closed her mouth to any word or act that might militate against the validity of this pretended will. Christmas, who had gotten himself into this pretended will as co-ex- ecutor, was placated with a legacy of $100,000. The fraudulent widow of Mrs. Gaines’ dead son, mother of these so-called three infant heirs, the Whitneys, opponents herein, who was the next person most to be dreaded by Christmas and Wilder, was given another legacy of $100,000; Edward Pendleton Gaines, step-son of the dece- dent, $25,000; to George W. Benson, a friend, $10,000; to Rev. John W. Harman, $10,000; to Myra Clark Gaines Mazerat, (grand-daughter of Wilder,) $20,000. We have here in legacies in this pretended will fully $330,000, or considerably more than one-half of the whole estate; nor is this all. Mr. Wilder testifies that on the 8th of January a promissory note of seven hundred odd dollars was drawn up for Mrs. Gaines by Mr. Anatole Ker, a Notary, in favor of a Mr. Bradley, (p. 503 of Record) and that Mrs. Gaines signed this note by mark, and also states that on the same day a donation was made to Mrs. Davis, which was also signed by mark. | This was the culmination of the conspiracy. The con- ditions of the will were supposed and intended to placate everybody able to make a formidable opposition to it except Mrs. Evans, and the only way to dispose of her was not to allow her to see Mrs. Gaines at all, or in other words to cut off all communication between them. They knew she had this will prepared before Christmas and Arthur had seen it dated, and they had no faith that she would not attempt to deliver it, nor had they any faith in the woman 16 Bradley. Christmas said of her to Arthur: “She is a she devil, and I must watch her,’ and to excuse himself for watching her said to Bissell and Boyd: “It is business this time.” It was for the purpose of watching and con- trolling the woman Bradley, then known as Gonzales, so that she could not deliver the will to Mrs. Evans, that this bogus marriage was gotten up, that took place on the afternoon of January 9th, and this note of over $700 was the sop given to the man Bradley for marrying the woman. (See testimony of Wilder, p. 510 of Record.) Notwith- standing this precaution the woman Bradley did deliver the will to Mrs. Evans, but asks not to be known in it, and then for fear that she will forfeit the note, denies it. In the meantime the man Bradley disappears, the note was sold to John Clyne, and Mrs. Bradley in the presence of Wilder is promised a brick house ‘for something she has done for me.” So Bradley and Wilder testify that Mrs. Gaines said, and this was on the evening of her death. There is one other point of interest, and that is Mrs. Gaines ability to have written, “January 8th”’ to the will, Me on that date. She did sign by mark two other papers in © the evening of that day as the witnesses state. It was the date of the unfortunate bath which she persisted in taking, © when she sat up by herself twenty minutes, and which Mrs. Adolphine Case swears that she would have taken by herself had they not assisted her, so strong was .her determination to take the bath. But there were eye wit- nesses to the signature. | It is, however, a very common occurrence, quite patent to those who are familiar to the sick chamber and with death, that an apparently unnatural strength both of mind and body occurs often the day before, and sometimes only a few hours before final dissolution, so marked that friends are often encouraged that the patient will recover, even when the death shadow is over them. The execution of important papers at such times has not been uncommon. Even the opponents to the will of the 8th testify that Mrs, Gaines’ mind was clear enough on that day to make the two donations named above, but that she signed by mark. But Mrs. Gaines was a ready writer and had a curious nth TO ON ie it ge re 17 way of avoiding what she did not wish to do. These do-. nations were the donations of Christmas and Wilder and not of Mrs. Gaines. Wilder says that Christmas wrote the $700 note to Mr. Bradley, contradicting his former testimony, and that he, Wilder, guaranteed its payment. Mrs. Gaines, as Dr. Holcomb tells us, “was angry and vexed at all of the business transactions that had been crowded upon her” by the conspirators on January 8th. Now we come to the close of the last day of her life, Fri- day, January 9th. The marriage had been consummated and the note delivered. They had secured all that they wanted for themselves, and the Bradley woman had delivered the will to Mrs. Evans at five o’clock, and Mrs. Gaines says to Wil- der, “‘I want you to buy a brick house for Letitia, (Mrs. Bradley,) with a bay window and marble steps.” (See Wilder’s testimony, pp. 503 and 504 of Record.) Without divulging to Wilder her motive, she thought ~to compensate Bradley for delivering the will to Mrs. Evans, and, according to the opposing witnesses, her mind was perfectly clear at this time, and she exemplified in it the truth of the old adage, “The ruling passion strong in death.” Betva A. Lockwoop, Of Counsel for Appellants. EL RE TT TTT -